Haas v. Haas

• Decision Date: 10 November 1981
• Citation: 443 N.Y.S.2d 830,84 A.D.2d 702
• Parties: Edward J. HAAS, Plaintiff-Respondent, v. Carlie F. HAAS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 830

443 N.Y.S.2d 830

84 A.D.2d 702

Edward J. HAAS, Plaintiff-Respondent, v. Carlie F. HAAS, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Nov. 10, 1981.

S. K. Meier, New York City, for plaintiff-respondent.

R. L. Felder, New York City, for defendant-appellant.

Before MURPHY, P. J., and KUPFERMAN, SULLIVAN, CARRO and LUPIANO, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County entered March 23, 1981, granting plaintiff's motion and vacating a judgment of divorce entered by default against the plaintiff on October 29, 1980, reinstating plaintiff's complaint and directing that the parties appear for depositions and produce relevant books and records, reversed, on the law, the facts, and in the exercise of discretion, without costs and disbursements, the plaintiff's motion to vacate and set aside the judgment entered on October 29, 1980 is denied, said judgment is reinstated and the stay of the order appealed from pending determination of this appeal issued by this Court is vacated.

Plaintiff has not made a sufficient showing of an adequate excuse for the default to warrant setting aside the judgment of divorce entered by default against him on October 29, 1980. The excuse offered was "law office failure" which excuse is insufficient, especially when viewed against the history of procrastination disclosed in the record (See Barasch v. Micucci, 49 N.Y.2d 594, 599, 427 N.Y.S.2d 732, 404 N.E.2d 1275; Weinstein-Korn-Miller: New York Civil Practice § 5015.04).

All concur except MURPHY, P. J., who dissents in part in a memorandum as follows:

Historically, the First Department has been very liberal in opening defaults in matrimonial actions (Vanderhorst v. Vanderhorst, 282 App.Div. 312, 123 N.Y.S.2d 115). Even in those matrimonial cases where the default was not inadvertent or the excuse was not adequate, this Department has consistently opened the default in the public interest if merit is shown to the defaulting party's cause or defense. (Munkacsi v. Munkacsi, 4 A.D.2d 854, 166 N.Y.S.2d 473; Revson v. Revson, 33 A.D.2d 738, 305 N.Y.S.2d 891). Even in those cases where merit was not demonstrated, the defaulter was even given an opportunity to renew upon more complete papers. (Price v. Price, 52 A.D.2d 800, 383 N.Y.S.2d 349). This liberal approach to opening defaults has been followed most recently in Taddeo v. Taddeo, 72 A.D.2d 512, 420 N.Y.S.2d 889.

After the First Department's decision in Taddeo, supra, the Court of Appeals rendered its opinion in Barasch v. Micucci, 49 N.Y.2d 594, 427 N.Y.S.2d 732, 404 N.E.2d 1275. The Court of Appeals stated, inter alia, that a party must (i) demonstrate a reasonable excuse for a default and (ii) show legal merit to the claim before a default will be opened under CPLR § 3012 subd. (b). The decision in Barasch does not represent a departure from the prior case law in this area but it is merely a reiteration of the two general requisites needed to open a default. (See, e. g., Kriegsman v. Rosenfeld, 35 A.D.2d 693, 314 N.Y.S.2d 601 app. dism'd 29 N.Y.2d 633, 324 N.Y.S.2d 457, 273 N.E.2d 311). Therefore, this Court may still, as a matter of policy and discretion, open a default in a matrimonial proceeding in accordance with the principles set forth in the Vanderhorst case and its progeny.

Upon this record, it is clear that the plaintiff has not provided a reasonable excuse for his default (i) in appearing at the continuance of his examination and (ii) in answering the defendant's motion to strike his complaint pursuant to CPLR § 3126. Plaintiff lays the blame for the default upon his former attorney, Joseph P. Napoli. In a letter dated April 24, 1980, Napoli informed Justice Gomez that the defaults were due to "clerical error, mismailing and mistake". Law office failures of this type are not acceptable as a valid excuse for...